Asian Journal of Comparative Law

Volume 1, Issue 1 2006 Article 11

Comparative Legal Traditions - Introducing the Common Law to Civil Lawyers in Asia
Margaret Fordham, Associate Professor, Faculty of Law, National University of Singapore; Deputy Director, Asian Law Institute

Recommended Citation: Fordham, Margaret (2006) "Comparative Legal Traditions - Introducing the Common Law to Civil Lawyers in Asia," Asian Journal of Comparative Law: Vol. 1: Iss. 1, Article 11. DOI: 10.2202/1932-0205.1013 Available at: http://www.bepress.com/asjcl/vol1/iss1/art11 2006 Berkeley Electronic Press. All rights reserved.

Comparative Legal Traditions - Introducing the Common Law to Civil Lawyers in Asia
Margaret Fordham

Abstract
As our focus turns from purely domestic law to regional and global issues, there is an increasing need to explain and, where possible, reconcile, the worlds two major systems of law the common law and civil law systems. Both play a crucial role in the legal infrastructure of Asia, and their sometimes uneasy relationship is one of the many challenges to overcome if we are to establish connections and forge understanding between the various legal traditions in this continent. This article focuses on the particular challenges involved in introducing the common law to Asian lawyers from civilian jurisdictions. It considers the difficulties which lawyers who are accustomed to a codified system of law experience when faced with the notionally more fluid and less structured system adopted in common law countries. It also, however, considers the underlying similarities between common law and civil law systems, and examines the characteristics which the two systems share characteristics which ultimately suggest that the innate differences have more to do with process than with philosophy. Author Notes: The writer would like to thank an anonymous referee for his very helpful comments on an earlier draft.

Fordham: Comparative Legal Traditions

I. THE HISTORICAL ROLE OF CIVIL LAW AND COMMON LAW IN ASIA

The two predominant legal traditions in the world the civilian and common 1 law systems are to be found operating side by side in Asia. In an age when cooperation and mutual understanding are core aims, there is a strong impetus for lawyers from each system to be familiar with, and to be able to function within, the other. And while a formal legal grouping similar to the European Union may remain a distant dream in Asia, the fact that the E.U. has been able to bring together a large number of civil and common law traditions under a single legislature shows that the two systems are by no means as incompatible as they might at first appear. The two systems were, of course, introduced in Asia largely through colonization. Common law was introduced in countries colonized by the British, and it applies today in territories such as India, Malaysia and Singapore. Civil law was spread through colonizers such as the French and the Dutch to territories like Indochina and Indonesia. In addition, even without the civilian tradition being imposed through colonization, several major jurisdictions (notably China, Japan, South Korea and Thailand) chose to adopt systems which were based, 2 either purely or predominantly, on civil law. There are a number of important 3 differences between the two systems ranging from the way in which judges are appointed (common law judges are drawn from within the legal profession, while civilian judges are specially trained for their roles) to the role of academic writing (which is very influential in civil law courts but of far less significance in common law ones). There is also the very important fact that civilian jurisdictions adopt an inquisitorial approach to deciding cases, in contrast to the adversarial approach of common law countries which often operates, particularly in criminal matters, in conjunction with the jury system. But probably the most fundamental difference between the two systems lies in the fact that while civil law jurisdictions have comprehensive written codes which are designed to cover every area of law, common law systems are based on judgemade law, which is developed on a case by case basis. Even though, particularly
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The civil law is a much older legal tradition than the common law. It has its origins in Roman law and dates back about 2,500 years, whereas the common law can be traced back less than 1,000 years. Civil law spread through Europe via the universities, and was therefore originally an academic system of law. Common law, on the other hand, developed as a very practical system developed by custom, through which travelling courts (or assizes) within England could apply law which was common to the whole country. Many of these systems are, for historical reasons, based on the German Civil Code. Most Asian countries introduced civil law systems in the latter part of the 19th century, during a period when Germany was in its ascendancy. For analysis of the primary distinctions between the common law and civil law systems, see George A. Zaphiriou, Introduction to Civil Law Systems in Danner and Bernal, eds Introduction to Foreign Legal Systems (Oceana Publications, 1994) ch 3. Zaphiriou argues that the four key characteristics of civil law systems are: a more dogmatic and moralistic approach to legal principles; extensive and integrated codifications; the lack of stare decisis; and the nature of the trial procedure, and in particular the absence of jury trials.

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in technical areas, legislation plays an increasingly important role, it is the weight given to judge-made law which really separates the common law world from its civilian counterpart.

II. THE CHALLENGES IN INTRODUCING A CIVILIAN TO THE COMMON LAW

The main challenges facing a civil lawyer who wishes to understand and function within a common law system thus relate to the role and structure of legislation and the overwhelming significance of case law.

A. LEGISLATION
Legislation is the paramount source of law in both civilian and common law jurisdictions. However, there the similarities superficially end. For while in civilian systems jurisprudence plays a secondary role to codes (which govern the law primarily in the area of private law) and statutes (which predominate in public law matters), in common law jurisdictions case law was historically and still, at least in theory, is the backbone of the system, with legislation enacted 5 only in certain areas. Civilians, both in Asia and elsewhere, are used to codes which offer a sequential view of the law in a given area, moving from first principles to specifics within a clear framework. Codes are written at a high level of abstraction, and are based on principles derived from the scientific study of legal data, thus offering an exhaustive overview of the law. On the other hand, most statutes in common law systems address only selective areas of the law, although they normally cover these areas in depth. They are thus also exhaustive, but in a different sense, since they do not normally offer a global snapshot or overview of a particular area of the law, but instead tend to provide comprehensive rules with respect to specific matters within that area. The complexity of many (particularly newer) common law statutes invites reference to other materials in order to gain a more complete understanding. But here the civil lawyer has to be introduced to the historical reluctance at least within the English common law tradition to 6 make use of extrinsic aids, something which can seem bafflingly self-defeating. The legislation of common law countries can thus initially strike the civilian as

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See discussion infra at C. See William Tetley Mixed jurisdictions: Common Law vs Civil Law (Codified and Uncodified) <http://www.unidroit.org/english/publications/review>. Traditionally, the English courts, in particular, took an extremely restrictive approach to the use of extrinsic aids when interpreting statutory provisions: see, eg, Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591. The position in English law was relaxed in Pepper v Hart [1992] 3 WLR 1032, although even that decision limits the circumstances in which parliamentary materials may be used. In other jurisdictions, however, a much more liberal attitude to the use of extrinsic aids has been adopted. See, eg, Interpretation Act (Cap. 1, 1999 Rev Ed. Sing), ss. 9A(2) and (3).

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being extremely detailed, but at the same time incomplete as an explanation or description of the relevant area of law. The difficulties experienced by civilians in understanding legislation in common law jurisdictions should not, however, be overstated, and the differences between the two systems are often in practice more apparent than real. As has already been observed, civil law systems make extensive use of statutes as well as codes, particularly in the public law arena, and so civilians are quite familiar with their form and content, while many common law countries have long 7 codified certain areas of law. And in an era when legislation has come to play a more prevalent role in common law jurisdictions, it seems likely that the line dividing the two systems will, in this respect at least, become ever fainter.

B. JURISPRUDENCE
Perhaps the most striking aspect of the common law system lies in the hugely influential role of judges. In civil law systems, judges at least in theory have a purely interpretative role, within which doctrinal guidance leaves little room for individual discretion. In common law systems, however, judges play a pivotal role, moulding and changing the law through case-by-case development. Among the qualities of the common law are the fact that its case-by-case nature allows for both gradual development and timely response to the changing 8 requirements of society. The system does, of course have its critics, and a civilian may well discover that, at least initially, he finds it easier to relate to criticisms of common law systems than to extol their virtues. The first response of many civil lawyers is to see judge-made law as somewhat inefficient, given that the development of the common law is dependent on particular fact patterns coming before the courts. Civilians often find the idea of the law being framed only when disputes arise to be odd and even somewhat crude and unsophisticated. Although in time many come to appreciate the benefits of a system which provides for response to changing social circumstances, some are never converted to the system and find its fluidity, and the inevitable gaps in the law to which it gives rise, incompatible with their idea that law must be predictable and certain. In fact, the extent to which certainty is valued in the civil and common law traditions is what really lies at the heart of the differences between them. For while in civilian jurisdictions certainty is the fundamental goal, common law systems regard flexibility as equally important. Under the common law, a judge bears major responsibility for ensuring certainty and stability, but also for

Codification within the common law tradition dates back a long way see, eg, the UK Bills of Exchange Act 1882 (45 & 46 Vict. C. 61). Other notable examples of codified legislation include the Indian Penal Code (Central Act 45 of 1860) and Penal Code (Cap. 224, 1985 Rev Ed. Sing). The system has been described by C. K. Allen, Law in the Making (Oxford: Oxford University Press, 1964) at 71, as having roots which strike deep into the soil of national ideas and institutions. For further discussion of Allens views and of the nature of the common law, see Mark Cooray in The Australian Achievement: From Bondage to Freedom (Epping, N.S.W.: Australian Achievement Project, 1988).

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exercising the discretion to change and develop the law, with certainty being 9 achieved through the rules of stare decisis, or binding precedent. The rules of stare decisis under which a lower court must follow decisions of courts above it in the judicial hierarchy, thus preventing a multiplicity of inconsistent rules developing in any given area are fundamental to the common law system. However, they can prove very problematic for civilians. This is not so much because civil law jurisdictions do not recognize the significance of prior decisions (in practice, civilian judges are, of course, influenced by the decisions in earlier cases) but rather because the application of stare decisis necessitates a detailed analysis of often complex decisions in order to determine whether or not an earlier case must be followed. Under the rules of stare decisis only the ratio decidendi of a case i.e., the decision on the facts, is binding. Obiter dicta i.e., observations which are not crucial to the decision, are not binding, even if they are statements by the most eminent judges in the highest courts. It is therefore critical within the common law process to determine the ratio of every case. But this can be a very difficult task, both because it is uncommon for a court to spell out the ratio of its decision and because common law judgments are often long and discursive (thus differing from judgments in civil law 10 jurisdictions, where judges are trained to adopt a concise and formalistic approach). The process of understanding common law jurisprudence and of applying the rules of stare decisis is complicated by the fact that, in common law systems, all decisions of higher courts contain multiple judgments. As a result, a lawyer attempting to determine the ratio of a case has to draw from several often subtly different judgments the single point for which the case stands. For someone new to the common law, and for whom English is often a second language, the process of working out exactly what a case has decided can be quite daunting. Moreover, because it is often difficult to determine the precise ratio of a previous decision, judges in subsequent cases frequently distinguish (and thus treat as not binding) authorities which might appear to other lawyers to be on point. Another obstacle to understanding posed by the rules of stare decisis is that many civilians see the rules as imposing a rigidity which they consider to be at odds with the general flexibility of the common law system. They learn that common law systems are less wedded to the notion of certainty than are their civil law counterparts, but they find this difficult to square with the reality of judges being bound to follow earlier decisions, however vehemently they may disagree with them. It can take a while to come to terms with the inherent tension in the fact that, while common law systems are, to a large extent, philosophically driven by the desire to allow development, common law judges frequently have their hands tied when deciding the cases before them. Civilians
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For further discussion of the differences between the civil law and common law systems see two works by John Henry Merryman: The Civil Law Tradition (Stanford: Stanford University Press, 1969) at 50-58 and On the Convergence (and Divergence) of the Civil Law and the Common Law in The Loneliness of the Comparative Lawyer and Other Essays in Foreign and Comparative Law (The Hague: Kluwer, 1999) at 17-27. While most civilian judges do indeed produce much shorter judgments than their common law counterparts, this is not always the case. The opinions of German courts, for example, tend to be quite long and to discuss both prior cases and academic writing.

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also consider this to be a somewhat cumbersome and unwieldy way to make law, given that a case may have to be heard at several different levels before it reaches a court with the power to depart from precedent. For a number of reasons, therefore, the nature of case-law and the role of stare decisis can be sources of frustration and consternation to a civilian first exposed to the complexities of the common law world. Only by constant exposure to common law reasoning processes, and to judicial techniques, can a civilian familiarize himself with the way in which law develops within common law systems. Starting with relatively straightforward decisions containing single judgments, a civil lawyer has to be introduced to the process of drawing principles from multiple judgment decisions and to the judicial manoeuvring which is often involved in distinguishing unpalatable precedents. Good textbooks and casebooks can be very helpful, particularly in terms of summarizing decisions and explaining how a chain of cases has given rise to developments in a particular area of law, but understanding the common law judicial process is primarily a matter of exposure and experience.

C. THE INCREASING SIGNIFICANCE OF LEGISLATION AND ITS EFFECT ON THE ROLE OF JURISPRUDENCE
The increasing importance of statutes within common law jurisdictions sometimes leads civilian observers both to question the continued primacy of jurisprudence and to complain about the inconsistency of the sources of law. The common law can, as has already been observed, only develop in response to circumstances, since it is dependent on disputes being brought before the courts. In modern society, the growing need to anticipate problems before they develop, particularly in areas involving the use of new or complex technology, has led in recent years to an exponential increase in both the role and the volume of legislation. The common law based as it is on the values of the community and on general societal norms and expectations can offer valuable guidance with respect to the acceptable parameters of legislation. But it is inevitable that those with the task of drafting legislation in common law jurisdictions will be influenced by a plethora of additional concerns, often resembling those which face civil lawmakers. For this reason, as the volume of legislation within common law jurisdictions grows, so too does the number of areas in which the law has a greater civilian feel. The result for the civil lawyer is a somewhat bemusing mix in which, while some fields remain governed by rather unfamiliar, judge-made law, others are now governed entirely by the relatively familiar mechanism of legislation. Moreover, since purely judge-made law tends to predominate in older, more established, low-tech areas, while legislation is almost endemic in newer and more technologically sophisticated areas, civilians may feel that jurisprudence as

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a source of law is on the wane, and that common law systems are slowly 11 espousing a framework which more resembles that of the civil law.

III. SHARED VALUES AND INCREASED MUTUAL UNDERSTANDING BETWEEN CIVIL LAW AND COMMON LAW JURISDICTIONS
Despite all the technical differences between the civilian and common law systems, there are a large number of similarities, the most important of which are, of course, the shared aspirations of regulating society, resolving disputes and meting out justice in as even-handed a manner as possible. And even in technical matters, such as those relating to procedure, there are areas of similarity. For example, in private law issues, civil law countries, like their common law equivalents, frequently rely on the parties to disputes to initiate actions, which are then decided on the basis of evidence brought before the court. Conversely, judges in normally adversarial common law jurisdictions on occasion adopt an inquisitorial stance, for example in family disputes, and 12 particularly those involving the needs and interests of children. In addition, many of the apparent differences in fact relate more to form than to substance. A civilian who becomes familiar with a particular area of common law may well, for example, find that if he transcribes the relevant law into a civil law format, there is a surprising degree of similarity between the two. And while civil law is supposedly more complete and coherent, in practice civilian judges face many of the same challenges as those faced by common law judges. Since civilian codes tend to be written at a high level of generality, judges have to base their judgments on general principles, and are frequently called on to draw analogies in order to fill in gaps or reconcile apparently conflicting provisions. Moreover, through legislation which often delegates powers to courts through general clauses, civilian judges also have the ability albeit within a framework less obviously tailored to judicial law-making to adapt the law to meet changing social conditions and to assist in its evolution. For similar reasons, the differences between the principles underlying the concept of separation of powers in common law and civilian jurisdictions are these days also acknowledged to be more apparent than real. In common law countries, the judicial role has traditionally been seen as balancing the power of other branches of government, whereas in civilian jurisdictions it has been seen as applying law which is made by the legislature. However, just as it is these days recognized that common law judges make law (with few, if any, proponents of the declaratory theory left to argue that common law judges may only find law
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See, eg, Luke Nottage, Civil Law and Common Law: Two Different Paths Leading to the Same Goal (2001) 32 V.U.W.L.R. 843 at 844. Not all commentators see the increasing importance of legislation within common law jurisdictions as a good thing. Cooray, supra note 8, for example, argues that the common law has been overlaid by statute and exists today in an emasculated form. The common law therefore, does not, as it once did, offer protection for individuals, against the over reaching and ever-expanding power of government. For further discussion, see eg. Tetley, supra note 5 and Cooray, supra note 8.

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Fordham: Comparative Legal Traditions

which is waiting to be discovered), it is also recognized that, even without the formal system of stare decisis, jurisprudence plays a significant role in most civil law countries, and that the role of judges is more creative than the nature of the system might suggest. It can also be argued that, just as the increase in legislation in common law countries brings them closer to the position of their civilian equivalents, so too the increasing reliance on precedents in civil law jurisdictions indicates a greater empathy with the common law world. It is certainly true that there is more exchange between the systems than was historically the case, as is evidenced by the growing willingness of common law judges to refer to the position under 13 civilian codes. In addition, in both systems a historical lack of clarity with respect to the most appropriate approaches to statutory interpretation has been resolved by 14 preference for a purposive approach over the plain meaning or literal rule.

IV. INCREASING EXPOSURE TO THE COMMON LAW WITHIN ASIA

Historically the physical distance between Asia and major common law jurisdictions such as the United Kingdom and the United States meant that (unlike civil lawyers in Europe and South America) civilians in Asia were both physically and psychologically removed from common law cultures. This increased the obstacles faced by Asian civil lawyers in understanding and gaining access to the common law. Universities in Asia generally taught law as a narrow and largely domestic discipline, and law practices were confined within the same territorial boundaries. As a result, many Asian countries were unfamiliar even with the legal systems of their civilian neighbours, and had little if any knowledge of legal systems outside their own sphere. This hindered both pan-Asian legal development and, albeit less directly, economic growth and co-operation. There has, however, been considerable progress in recent years in addressing this somewhat isolationist attitude. Cultural and legal influences are spreading, and we are beginning to see far greater willingness to look outside our own legal heritage. At an academic level, the introduction of more comparative law courses and even specialized courses on the common law within Asian universities means that aspiring lawyers within the region now have opportunities to learn about and understand other legal systems. Such courses are often taught by
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For a relatively recent example of a case in which the House of Lords in England varied the rules relating to causation of damage in negligence after examining the provisions of several civil codes together with the position in other common law jurisdictions, see Fairchild v Glenhaven Funeral Services Ltd [2002] U.K.H.L. 22; [2003] 1 AC 32. Traditionally, a number of sometimes contradictory approaches were employed when interpreting statutes in common law jurisdictions. (For discussion of these approaches, see, eg, John Willis, Statute Interpretation in a Nutshell (1938) 16 Canadian Bar Review 1 and Ruth Sullivan, The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation <http://aix1.uottawa.ca/~resulliv/legdr/pmr.html>. However, nowadays the purposive approach is increasingly favoured in many jurisdictions. (See e.g., Interpretation Act, Cap 1, 1999 ed. Sing) s. 9A(1). For further discussion of the civil law position, see Merryman, The Civil Law Tradition, supra note 9, at 43-46.

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lawyers from the common law world, and thus offer the advantage of exposing students not only to the common law as a subject of study but also to the practical insights of those who have trained and worked within the system. Due also to a general increase in academic exchanges with countries such as the United Kingdom, the United States, Canada and Australia both at staff and student levels there is now far better understanding of the common law world and a more relaxed attitude towards the differences between the civil and common law systems. At a more practical level, the increasing number of common law legal practices which have established offices in Asia, particularly in the major business hubs, has also created opportunities to obtain experience of the common law. This has fostered a level of understanding and acceptance unheard of only decades ago. Many Asian lawyers now enjoy the opportunity to work in foreign practices, both in their home countries and in overseas postings, and thus to acquire hands-on experience of the common law. Trans-national deals also expose them to the demands of negotiating with parties from common law systems, thus helping to remove much of the mystique which formerly surrounded the common law. Thus through ease of communication, a more flexible approach to the teaching of law, and working conditions which are increasingly international in flavour, the differences between predominantly civilian Asia and the major common law jurisdictions are becoming ever less significant. The legal world is now, in a practical sense, a smaller and less disparate place, and the huge advances which continue to be made in terms of movement within, and access to, one anothers systems suggest that integration of the worlds two great legal cultures is likely to increase exponentially in the coming years.

http://www.bepress.com/asjcl/vol1/iss1/art11 DOI: 10.2202/1932-0205.1013